FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONRAD GOROSPE; SHIRLEY 

GOROSPE,

No. 04-73277 Petitioners-Appellants,

Tax Ct. No.

v.  13116-02L

COMMISSIONER OF INTERNAL OPINION REVENUE,

Respondent-Appellee. 

Appeal from a Decision of the

United States Tax Court

Argued and Submitted

April 5, 2006—Pasadena, California

Filed May 3, 2006

Before: Jerome Farris, Ferdinand F. Fernandez, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

5015
COUNSEL

A. Lavar Taylor, Santa Ana, California, for the appellants. 

GOROSPE v. COMMISSIONER OF INTERNAL REVENUE 5017
Bridget M. Rowan, Anthony T. Sheehan, Johnathan S. Cohen,

Eileen J. O’Connor, United States Department of Justice,

Washington, D.C., for the appellee. 

OPINION

THOMAS, Circuit Judge: 

The appeal presents the question of whether the United

States Tax Court has plenary jurisdiction to hear all appeals

from collection due process (“CDP”) proceedings before the

Internal Revenue Service (“IRS”). We reaffirm the principle

that the Tax Court’s jurisdiction over appeals from CDP

determinations is limited to issues over which the Tax Court

would have had jurisdiction to consider the underlying tax liability. 

I

When a taxpayer fails to pay his federal taxes, after the IRS

demands payment, the amount due becomes a “lien in favor

of the United States upon all property and rights to property,

whether real or personal, belonging to such person.” 26

U.S.C. § 6321. The lien does not become effective immediately. On the contrary, the lien is not effective until the IRS

has filed notice, 26 U.S.C. § 6323(f), and enforced the lien by

levying the property of the delinquent taxpayer, 26 U.S.C.

§ 6331(a). The IRS must also notify a taxpayer before imposing a levy. 26 U.S.C. § 6331(d). 

Once the IRS has notified a taxpayer of its intent to impose

a lien or a levy, the taxpayer has the right to a CDP hearing

before the IRS Office of Appeals, and is entitled to raise

defenses and to contest the levy or lien. 26 U.S.C.

§ 6330(c)(2)(A).1 After receiving a determination from the

1Section 6320(c) looks to § 6330 for issues regarding hearings, review

of decisions, and suspensions. Therefore, we discuss the procedural

requirements as outlined in § 6330 in discussing both the liens and the

levy. 

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IRS Office of Appeals, a taxpayer may seek judicial review,

either in the Tax Court or in district court. 26 U.S.C.

§ 6330(d). This appeal concerns the boundaries of the Tax

Court’s jurisdiction in CDP appeals. 

In 1999, the IRS sought liens against Dr. Conrad and Shirley Gorospe (“Taxpayers”) to collect their 1992, 1993, 1994,

and 1997 income taxes. It also sought a levy against Dr.

Gorospe to collect trust fund recovery penalties for taxes that

he withheld from his employees’ paychecks, but failed to pay

to the government. The IRS sent Taxpayers CDP notices, and

Taxpayers filed a timely request for a hearing before the IRS

Office of Appeals. 

In 2002, the IRS Office of Appeals sent Taxpayers three

separate Notices of Determination. The first Notice sustained

the lien based on Taxpayers’ unpaid 1992-1994 income taxes.

The second Notice sustained the lien based on Taxpayers’

unpaid 1997 income taxes. The third Notice sustained the levy

based on the trust fund recovery penalties that Dr. Gorospe

owed. 

Taxpayers appealed all three Determinations to the Tax

Court. The IRS moved to dismiss the appeal of the trust fund

recovery penalty determination, arguing that the Tax Court

lacked subject matter jurisdiction over the underlying tax liability. The Tax Court agreed, and dismissed Taxpayers’

appeal of the trust fund recovery penalty determination. 

Taxpayers sought a Federal Rule of Civil Procedure 54(b)

determination from the Tax Court, which was denied.

Undaunted, they appealed the Tax Court’s dismissal of the

trust fund recovery penalty appeal to this court, and we dismissed for lack of appellate jurisdiction. Taxpayers then

entered into a stipulation with the IRS, in which they admitted

the validity of the income tax liens, and the Tax Court entered

final judgment. Taxpayers again seek review of the Tax

Court’s dismissal of their trust fund recovery penalty determiGOROSPE v. COMMISSIONER OF INTERNAL REVENUE 5019
nation appeal in this court. We review de novo the Tax

Court’s dismissal of an appeal for lack of subject matter jurisdiction. Estate of Branson v. Comm’r, 264 F.3d 904, 908 (9th

Cir. 2001). 

II

[1] The Tax Court is an Article I “court of limited jurisdiction and lacks general equitable powers.” Comm’r v. McCoy,

484 U.S. 3, 7 (1987) (per curiam). Its subject matter jurisdiction is statutorily granted by 26 U.S.C. § 7442, and is defined

and limited by Title 26 of the United States Code. Estate of

Branson, 264 F.3d at 908. Thus, we must consider whether

Congress authorized the Tax Court to hear appeals of the IRS

Office of Appeals’s determinations in trust fund recovery penalty cases. The plain language of 26 U.S.C. § 6330(d) requires

us to hold that Congress did not so intend. 

We first “determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular

dispute in the case. [Any] inquiry must cease if the statutory

language is unambiguous and the statutory scheme is coherent

and consistent.” Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997) (internal quotation marks omitted). 

26 U.S.C. § 6330(d) states:

(d) Proceeding after hearing. 

(1) Judicial review of determination. The

person may, within 30 days of a determination under this section, appeal such determination — 

(A) to the Tax Court (and the Tax Court

shall have jurisdiction with respect to

such matter); or 

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(B) if the Tax Court does not have jurisdiction of the underlying tax liability, to

a district court of the United States. 

If a court determines that the appeal was to

an incorrect court, a person shall have 30

days after the court determination to file

such appeal with the correct court. 

[2] Taking this language at face value, it is apparent that the

Tax Court does not have plenary jurisdiction over appeals of

CDP determinations. Rather, it has jurisdiction only where it

would have had jurisdiction to consider the underlying tax liability. Where the Tax Court would not have had jurisdiction

over the underlying tax liability, jurisdiction rests in the district courts. Moore v. Comm’r, 114 T.C. 171, 175 (2000)

(“[s]ection 6330(d)(1)(A) and (B) provides for Tax Court

jurisdiction except where the Court does not normally have

jurisdiction over the underlying liability.”).2

2To the extent that out-of-circuit precedent is persuasive, we note that

it overwhelmingly supports our interpretation of § 6330. See, e.g., Robinette v. Comm’r, 439 F.3d 455, 458 (8th Cir. 2006) (“The statute also

affords a right of judicial review of the determination by the impartial

hearing officer, in either the Tax Court or a United States District Court,

depending on whether the Tax Court has jurisdiction. Id. § 6330(d)(1).”);

Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004) (per curiam) (“The

presumption is that review should be sought in the Tax Court, but in cases

where the Tax Court lacks jurisdiction, the taxpayer may seek review in

the district court.”); Marino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004)

(per curiam) (finding that the Tax Court has exclusive jurisdiction over

CDP determinations based on income tax liabilities and noting that the

district court would have had jurisdiction had the determination involved

employment tax liabilities); Borges v. United States, 317 F. Supp. 2d

1276, 1281 (D. N. M. 2004) (“Because the Tax Court does not have jurisdiction over employment tax liabilities, the district court is the proper

court in which to seek review of an administrative determination regarding

the assessment of employment taxes.”); Abu-Awad v. United States, 294

F. Supp. 2d 879, 886-887 (S.D. Tx. 2003) (“Because the Tax Court does

not have jurisdiction with respect to employment tax liability, the district

GOROSPE v. COMMISSIONER OF INTERNAL REVENUE 5021
[3] The flush language at the end of § 6330(d), which modifies both § 6330(d)(1)(A) and § 6330(d)(1)(B) and explains

what to do where an “appeal was to an incorrect court,” mandates this conclusion. It provides that “the district court can

determine that appeal should have been to [the Tax] Court,

and [the Tax Court] can determine that appeal should have

been to the district court.” Johnson v. Comm’r, 117 T.C. 204,

211 (2001) (Vasquez, J, concurring). If the Tax Court has plenary jurisdiction, it would be impossible for an appeal in the

Tax Court to have been taken to “an incorrect court,” and the

flush language at the end of § 6330(d) would have been written so as to apply only to cases in which a taxpayer attempts

to invoke the jurisdiction of the district courts. 

[4] The conclusion that the Tax Court lacks jurisdiction

over CDP appeals where it would lack jurisdiction over the

underlying tax liability is also supported by “the broader context of the statute as a whole.” Robinson, 519 U.S. at 341. In

other sections of the Tax Code, Congress explicitly provided

for exclusive jurisdiction in the district courts, with limited

concurrent jurisdiction in the Tax Court. See, e.g., 26 U.S.C.

§ 7429(b)(2)(A) (“Except as provided in subparagraph (B),

the district courts of the United States shall have exclusive

jurisdiction over any civil action for a determination under

this subsection.”). Had Congress intended to enact a similar

scheme in § 6330, it would have done so. Johnson, 117 T.C.

at 212 (Vasquez, J, Concurring). Moreover, 26 U.S.C.

§ 6015(e)(1)(A) also states that “the individual may petition

the Tax Court (and the Tax Court shall have jurisdiction)”,

but that provision has never been interpreted to give the Tax

Court unlimited jurisdiction. Johnson, 117 T.C. at 212-13. We

court is the proper court in which to file a complaint contesting the assessment of employment taxes.”). Taxpayers’ arguments to the contrary, based

on Hoffman v. Comm’r, 119 T.C. 140 (2002), Landry v. Comm’r, 116 T.C.

60 (2001), Dogwood Forest Rest Home, Inc. v. United States, 181 F. Supp.

2d 554 (M.D. N.C. 2001), and ACT Restoration, Inc. v. United States,

1999 U.S. Dist. LEXIS 16015 (N.D. Fla. 1999), do not withstand scrutiny.

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will not ascribe different meaning to the identical language in

§ 6015 and § 6330. Thus, if the Tax Court’s jurisdiction is not

plenary under § 6015(e)(1)(A), it cannot be plenary under

§ 6330(d)(1)(A), either. 

Taxpayers argue that despite the clear language of § 6330

and the Tax Code as a whole, § 6330(d)(1)(A) grants plenary

jurisdiction to the Tax Court to review CDP determinations,

regardless of the tax liability upon which they are based. They

dismiss the flush language following (d)(1)(B) because “the

failure of Congress to use the phrase ‘District Court’ instead

of ‘a court’ . . . must be viewed as an oversight.” However,

this argument ignores a fundamental precept of statutory

interpretation. We cannot dismiss the flush language as an

“oversight” because “[i]f Congress enacted into law something different from what it intended, then it should amend the

statute to conform it to its intent. It is beyond our province to

rescue Congress from its drafting errors, and to provide for

what we might think . . . is the preferred result.” Lamie v.

United States Trustee, 540 U.S. 526, 542 (2004). 

Taxpayers also argue that a literal interpretation of § 6330

would strip the Tax Court of almost its entire grant of jurisdiction because the Tax Court has jurisdiction only over disputes concerning unassessed taxes. Because CDP hearings

occur after taxes have been assessed, the argument goes, the

Tax Court would never have jurisdiction over the “underlying

tax liability.” Taxpayers’ argument proves too much: if the

Tax Court would never have jurisdiction of the underlying tax

liability, then the district court would always have concurrent

jurisdiction, and the flush language after § 6330(d)(1)(B)

would be superfluous. We will not interpret one provision of

a statute so as to render another provision surplusage. Freytag

v. Comm’r, 501 U.S. 868, 877 (1991) (“Our cases consistently

have expressed a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same

enactment.” (internal quotation marks omitted)). 

GOROSPE v. COMMISSIONER OF INTERNAL REVENUE 5023
[5] Finally, Taxpayers argue that the more efficient interpretation of § 6330 would permit the Tax Court to hear

appeals of trust fund recovery penalty determinations when

those appeals are related to others properly before the Tax

Court. However, the plain language of the statute is clear, and

we are bound by it, regardless of our own notions of judicial

efficiency. The language of § 6330(d)(1)(A) does not suggest

— even slightly — that the Tax Court has supplemental jurisdiction over CDP determinations involving trust fund recovery penalties when those determinations are related to other

claims properly before the Tax Court. Though providing a

single forum to resolve related tax disputes might be the more

efficient approach, we are not legislators, and we must decline

Taxpayers’ invitation to write a supplemental jurisdiction statute similar to 28 U.S.C. § 1367 into the Tax Code. See Lamie,

540 U.S. at 542.3

III

[6] Therefore, for these reasons, we must affirm the Tax

Court’s dismissal for lack of subject matter jurisdiction of

Taxpayers’ appeal of the trust fund recovery penalties determination. 

AFFIRMED.

3

It is also worth noting that in this case, a holding that the Tax Court

has jurisdiction to hear appeals of CDP determinations involving trust

fund recovery penalties would not aid Taxpayers in their quest for judicial

efficiency. They stipulated with the IRS as to the validity of the determinations based on their failure to pay income taxes in 1992-1994 and 1997.

Thus, the only issue remaining in their case concerns the trust fund recovery penalties. 

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